The east 100 feet of Lot 101

Dave Karoly, post: 367505, member: 94 wrote: Years later after the two tracts have changed hands multiple times a Surveyor finds the original stakes and declares they can't be accepted because they are uncalled for and because they are not precisely 100.00 feet west of the east line of Lot 101 (say they are 102.25 feet west of the current ascertained east boundary of Lot 101). This is incorrect.

I'd think that the burden would be to demonstrate that an error of 2.25 ft over 100 ft. falls within the range of ordinary and expected errors and is not merely a mistake if one wants to rely upon the survey as something other than merely a mutual mistake.

Dave Karoly, post: 367505, member: 94 wrote: ...The Surveyor stakes the line, the Grantee takes possession up to the Surveyor's line and the Grantor, seeing this, does not object....

You are describing a case of occupation by "mutual mistake". There is no unwritten agreement here. In order for there to be an agreement, there must first be a disagreement. No estoppel, since the grantee has no way to know the surveyor's line is not correct.

If the possessor has obrtained title it is through A.P. In Oregon occupation in cases of mutual mistake is assumed to be hostile. Norgard v. Busher

[INDENT][INDENT]"....we hold that possession under a mistaken belief of ownership satisfies the element of hostility or adverseness in the application of the doctrine of adverse possession..."
[/INDENT][/INDENT]
As discussed in Norgard there was a once upon a time when when occupation under mutual mistake was held to not be hostile, and therefore could never ripen into A.P.

The Oklahoma case of Threet v. Polk discusses the effect of occupation by "honest mistake" and includes a reference to Norgard.

Ah, but, the east line may have moved, not the survey stakes. I have seen this happen when a governmental entity that builds and rebuilds roads completely destroys all evidence from the past then re-establishes certain control points in places where they must not have been located at an earlier time. This fact isn't discovered until one starts discovering fairly consistent disagreement between old, more remote monuments, and the new control left following construction. This is one of the curses of PLSSia where the vast majority of section lines have roads centered along them.

Mark Mayer, post: 367518, member: 424 wrote: You are describing a case of occupation by "mutual mistake". There is no unwritten agreement here. In order for there to be an agreement, there must first be a disagreement. No estoppel, since the grantee has no way to know the surveyor's line is not correct.

If the possessor has obrtained title it is through A.P. In Oregon occupation in cases of mutual mistake is assumed to be hostile. Norgard v. Busher

[INDENT][INDENT]"....we hold that possession under a mistaken belief of ownership satisfies the element of hostility or adverseness in the application of the doctrine of adverse possession..."
[/INDENT][/INDENT]
As discussed in Norgard there was a once upon a time when when occupation under mutual mistake was held to not be hostile, and therefore could never ripen into A.P.

The Oklahoma case of Threet v. Polk discusses the effect of occupation by "honest mistake" and includes a reference to Norgard.

The California cases are divided, some say the line may be founded in a mistake and others say the in the case of mutual mistake the true owner is not estopped to claim the true line.

The issue hasn't come up recently because the recent cases turn on whether there is direct evidence of mutual uncertainty and direct evidence of agreement.

Seems like the problem most of the time in this situation is knowing the connection between these monuments in the ground today and the original deed and transaction. So many times you may have no record of how those monuments got there or how long they've been there.

Kent McMillan, post: 367512, member: 3 wrote: I'd think that the burden would be to demonstrate that an error of 2.25 ft over 100 ft. falls within the range of ordinary and expected errors and is not merely a mistake if one wants to rely upon the survey as something other than merely a mutual mistake.

I've read a lot of cases. They mostly turn on what the parties did and whether there was actual notice of the boundary. Precision is never expressed as a concern but I imagine there is a reasonableness standard, it's not quantifiable in a mathematical way because the questions get bound up together.

For example, there is a California case involving a strip along a creek in Yuba County. The grantor delivered a deed for about 740 lineal feet along the creek. Then the grantor and a third party paced it off and set a stake so that the third party, a USFS Forest Ranger, could get the next strip along the creek. The stake was about 40' too far down the creek. The first grantee, remember he was not involved in the measurement exercise, tried to claim down to the stake and the Court disagreed with him. That case was between the original parties.

"Years later, after the two tracts have changed hands multiple times, a Surveyor finds the original stakes"
(how does the recent surveyor know that the stakes he finds are "original"? Maybe they were set by the nephew of the neighbor, who just happens to be a rodman).

"So many times you may have no record of how those monuments got there or how long they've been there."

Without knowing who set the stakes (monuments), or how long the stakes have been there, and a record of how the stakes were set
one cannot take it upon themself to hold the stake (monument) rather than the distance, unless the monument is called for by the original deed.

We surveyors can interject our opinions into the deed all we want. But unless we were a party to the original deed, we can only theorize
about the "intent" of the grantor and grantee. Unless the surveyor is also an attorney, the surveyor cannot advocate for the client.

Dave Karoly, post: 367539, member: 94 wrote: I've read a lot of cases. They mostly turn on what the parties did and whether there was actual notice of the boundary. Precision is never expressed as a concern but I imagine there is a reasonableness standard, it's not quantifiable in a mathematical way because the questions get bound up together.

Texas courts haven't hesitated to deal with the question of whether a measurement of a few hundred feet was a fairly definite quantity. I'll dig up one particularly good case (in San Antonio) I have in mind that dealt with something similar to your hypothetical, i.e. a boundary described as being a certain distance (which as I recall was less than 300 ft.) from corners that were known and uncontested. The facts of the case led the court to conclude that a certain fence could not have been an agreed boundary because the true boundary could be readily determined and there was no uncertainty as to its location.

Obviously, that argument looks better as the distance to be measured is shorter, weaker as it lengthens or in the presence of complicating factors like terrain.

Minor correction. I was misrecalling some of the details of the case I had in mind which was Boothe v. Fuentes and dealt with a discrepancy of 10 varas in a distance of 100 varas.

Boothe v. Fuentes 262SW2d754

Kent McMillan, post: 367575, member: 3 wrote: Minor correction. I was misrecalling some of the details of the case I had in mind which was Boothe v. Fuentes and dealt with a discrepancy of 10 varas in a distance of 100 varas.

Boothe v. Fuentes 262SW2d754

The first part of your cited case is distinguishable. The evidence was the fence was intentionally built off line 10 varas so that it was further from the house on the adjoining lot. It was not built to resolve an uncertainty as to the boundary location or to be a boundary so it's not a boundary by acquiescence or agreement.

It's a fact case. Are the found stakes the original monuments? Obviously the Appellate Court doesn't think they are. They don't say they are uncomfortable with the 10 varas of slop, it's more like these aren't the original stakes so go 90 varas, okay get out of my courtroom.

I think Fuentes got screwed and his legal counsel didn't do him any favors, where is the cross examination of Boothe? I can think that because the case is about facts. The only legal question is the Texas acquiescence doctrine which they resolved based on Boothe's testimony which I don't believe but there you have it.

Dave Karoly, post: 367594, member: 94 wrote: The first part of your cited case is distinguishable. The evidence was the fence was intentionally built off line 10 varas so that it was further from the house on the adjoining lot.

Actually, what the case report says is this:

"The evidence shows that about 1926 some character of fence was erected along the 100 vara line. It appears that the maintenance of this fence was neglected, and at times it was ineffective as a barrier, until an entirely new fence was constructed along the line by Boothe in 1941 or 1943. (There is a dispute in the evidence as to the exact date.) There was a discernable line between the two tracts at the 100 vara point, from 1926 until the time of the trial of this suit, but there is no proof of uncertainty between the owners of the two tracts involved as to the true boundary line. The record is entirely silent as to the reasons why the fence was constructed along the 100 vara line in 1926 ..."

In other words, a fence was built along a line that turned out to be 100 vrs. from known corners, instead of 90 vrs. and the existence of the fence was held to be evidence of nothing.

There were old survey markers in place at 100 vrs.:

"One of appellee's witnesses testified that he located two steel stakes at the hundred vara distance, at or near the northeast and northwest corners of the tract, and that although he made diligent search at the 90 vara distances, he found nothing. From the evidence it can not be said with reasonable certainty that these stakes were original monuments of a survey made in 1924, although it appears that they had been in place for some time, as they were covered with soil and grass roots.

The surveyor, or whoever prepared the notes for the description contained in the 1924 deed, described the stakes at the northeast and northwest corners of the tract now owned by Fuentes as being located at the 90 vara distance. If we assume that an actual survey was made and the corners marked upon the ground, it seems that there is nothing in this record except mere surmise and conjecture, to support an assertion that the stakes were not placed where the surveyor said they were."

In other words, the fact that there were old survey markers in place counted for nothing since they couldn't be proven to be the original markers described in the deed and were at significant variance with the call for distance.

This one is interesting:
http://www.leagle.com/decision/In%20TXCO%2020110622674/RDG%20PARTNERSHIP%20v.%20LONG

Early on they refuse to overturn the Surveyor's report. This is pretty much what happens in California. If the trial court approves of a Survey the Appellate Court will treat it as a finding of fact and will usually refuse to reverse on that. Then the case will be unpublished or in one recent case they only published the part about Attorney fees, not the analysis of the appeal complaining their survey was rejected by the trial court while the other survey was accepted.

Kent McMillan, post: 367604, member: 3 wrote: Actually, what the case report says is this:

"The evidence shows that about 1926 some character of fence was erected along the 100 vara line. It appears that the maintenance of this fence was neglected, and at times it was ineffective as a barrier, until an entirely new fence was constructed along the line by Boothe in 1941 or 1943. (There is a dispute in the evidence as to the exact date.) There was a discernable line between the two tracts at the 100 vara point, from 1926 until the time of the trial of this suit, but there is no proof of uncertainty between the owners of the two tracts involved as to the true boundary line. The record is entirely silent as to the reasons why the fence was constructed along the 100 vara line in 1926 ..."

In other words, a fence was built along a line that turned out to be 100 vrs. from known corners, instead of 90 vrs. and the existence of the fence was held to be evidence of nothing.

There were old survey markers in place at 100 vrs.:

"One of appellee's witnesses testified that he located two steel stakes at the hundred vara distance, at or near the northeast and northwest corners of the tract, and that although he made diligent search at the 90 vara distances, he found nothing. From the evidence it can not be said with reasonable certainty that these stakes were original monuments of a survey made in 1924, although it appears that they had been in place for some time, as they were covered with soil and grass roots.

The surveyor, or whoever prepared the notes for the description contained in the 1924 deed, described the stakes at the northeast and northwest corners of the tract now owned by Fuentes as being located at the 90 vara distance. If we assume that an actual survey was made and the corners marked upon the ground, it seems that there is nothing in this record except mere surmise and conjecture, to support an assertion that the stakes were not placed where the surveyor said they were."

In other words, the fact that there were old survey markers in place counted for nothing since they couldn't be proven to be the original markers described in the deed and were at significant variance with the call for distance.

I think it was improper to reverse the trial court in this case, that's just what I think.

The Courts in their outcome based reasoning can always say in a boundary case no one knows because no one knows, that doesn't mean those weren't the original stakes. If they want to reject the stakes then they say it's all just speculation. If they want to accept them then they say they can infer that those replaced the original stakes blah blah blah. That's why they have rules that they are supposed to give deference to the trial court's finding of facts, because the trial court is in a better position to judge these things.

Dave Karoly, post: 367605, member: 94 wrote: This one is interesting:
http://www.leagle.com/decision/In TXCO 20110622674/RDG PARTNERSHIP v. LONG

Early on they refuse to overturn the Surveyor's report. This is pretty much what happens in California.

As it turns out, that case is one that I'm intimately familiar with, but I hesitate to mention various details that shed considerable light upon the record because the surveyor who was involved in the trial is gravely ill. I wasn't involved in the initial trial, but discovered afterwards when hired as an expert on another matter that the evidence upon which the case was decided was the sort that I believe most professional surveyors would consider to be strange, to say the least.

As a general rule, if you simply assume that the line of some fence perpetuates an original boundary that was in place at the time a large subdivision was laid out in the early 20th century and locate a line in dispute by running course and distance from such a fenceline and a certain post on it as if they were the best evidence of how the entire subdivision had actually been laid out, you leave yourself open to some other surveyor doing much more exhaustive research and investigation that shows your assumptions to be completely wrong. If the actual situation is that the fenceline adopted is approximately 30 ft. West of the location of the line it was assumed to mark, then it would not be unexpected that every line and corner located by running course and distance from such a fenceline is also shifted out of position by 30 ft. or more.

If a court were to rely upon such a survey and it were to be entered into evidence uncontested, then it would not be surprising that one of the parties might lose title to a strip of land roughly 30 ft. in width and be left without recourse on appeal because the record consisted only of the mistaken survey that went unchallenged at trial.

Kent McMillan, post: 367611, member: 3 wrote: As it turns out, that case is one that I'm intimately familiar with, but I hesitate to mention various details that shed considerable light upon the record because the surveyor who was involved in the trial is gravely ill. I wasn't involved in the initial trial, but discovered afterwards when hired as an expert on another matter that the evidence upon which the case was decided was the sort that I believe most professional surveyors would consider to be strange, to say the least.

As a general rule, if you simply assume that the line of some fence perpetuates an original boundary that was in place at the time a large subdivision was laid out in the early 20th century and locate a line in dispute by running course and distance from such a fenceline and a certain post on it as if they were the best evidence of how the entire subdivision had actually been laid out, you leave yourself open to some other surveyor doing much more exhaustive research and investigation that shows your assumptions to be completely wrong. If the actual situation is that the fenceline adopted is approximately 30 ft. West of the location of the line it was assumed to mark, then it would not be unexpected that every line and corner located by running course and distance from such a fenceline is also shifted out of position by 30 ft. or more.

If a court were to rely upon such a survey and it were to be entered into evidence uncontested, then it would not be surprising that one of the parties might lose title to a strip of land roughly 30 ft. in width and be left without recourse on appeal because the record consisted only of the mistaken survey that went unchallenged at trial.

Well it didn't smell right, I will say that. The Court followed its own rules, at least, construing in favor of the judgment. I think that case in California would go unpublished.

In the other case there is no findings of fact and conclusions of law so they say they have to construe in favor of Fuentes then they proceed to do the opposite.

Dave Karoly, post: 367505, member: 94 wrote: This is hypothetical.

Obviously the description, "the east 100 feet of Lot 101" is patently unambiguous. If the grantee contends the intentions of the parties was the east 150 feet of Lot 101 the Court will have to disagree because the intentions of the parties is ascertained from an objective reading of the written instrument. Same result if the grantor contends that the true intention was to transfer the East 75 feet of Lot 101.

Suppose there happens to be monuments 150 feet west of the east line of Lot 101. The grantee may attempt to invoke the rule that monuments control distance. Since the monuments are uncalled for they do not control over the distance called for in the Deed description. In addition, there is a rule which will not allow a rule of construction to produce an absurd result.

Now suppose the Deed has been delivered and the grantee retains a Surveyor to stake the west line of the east 100 feet of Lot 101. This is an act of good faith, by the way. The Surveyor stakes the line, the Grantee takes possession up to the Surveyor's line and the Grantor, seeing this, does not object.

Years later after the two tracts have changed hands multiple times a Surveyor finds the original stakes and declares they can't be accepted because they are uncalled for and because they are not precisely 100.00 feet west of the east line of Lot 101 (say they are 102.25 feet west of the current ascertained east boundary of Lot 101). This is incorrect.

It is often said by the Courts that what boundaries are is a question of law, but where boundaries are located is a question of fact. The Deed description is a means to ascertain where the boundaries of the tract are located. This does not mean that absolute perfection is expected or required.

As a matter of law, the west boundary of the east 100 feet of Lot 101 is 100 feet west of the east line of Lot 101. As a matter of fact, the possessed East 100 feet is 102.25 feet wide.

Justice Shaw explained it like this:

I just now read this thread. I know it took a path of it's own into other cases. I can see your hypothetical case, as the acceptance of the 102.25 feet as what the 'first' surveyor staked and accepted by the owners. However, as a retracing surveyor you need to show all of the situation "facts". You need to be certain that these are indeed the same uncalled for monuments set by the "first" surveyor and that they are in the same place where they were set, and also that the corners were accepted and taken as the boundary markers by the two parties whose boundary it represents by their actions.

And one comment to Mark Mayer's comment that to have an agreement, there would have to have been a disagreement. I would suggest that an acquiesced-to line would be an agreed-to line that never was in dispute.

Tom Adams, post: 367623, member: 7285 wrote: I just now read this thread. I know it took a path of it's own into other cases. I can see your hypothetical case, as the acceptance of the 102.25 feet as what the 'first' surveyor staked and accepted by the owners. However, as a retracing surveyor you need to show all of the situation "facts". You need to be certain that these are indeed the same uncalled for monuments set by the "first" surveyor and that they are in the same place where they were set, and also that the corners were accepted and taken as the boundary markers by the two parties whose boundary it represents by their actions.

And one comment to Mark Mayer's comment that to have an agreement, there would have to have been a disagreement. I would suggest that an acquiesced-to line would be an agreed-to line that never was in dispute.

It depends upon which State you are in but most do not require an actual dispute, only uncertainty. When adjoining owners agree they don't know where the boundary is located and they take steps to establish it they have met the requirements except for maybe letting the statute run.

Dave Karoly, post: 367628, member: 94 wrote: It depends upon which State you are in but most do not require an actual dispute, only uncertainty. When adjoining owners agree they don't know where the boundary is located and they take steps to establish it they have met the requirements except for maybe letting the statute run.

That's my point as well. Maybe even not the uncertainty. (Uncertainty for a "boundary line agreement" but not necessarily for "acquiescence). I can't speak for all states of course, and probably not for Colorado. But CO does have a statute on it, and, I believe it is something like 20 years of acquiescence ripens that into being the boundary line. (Just talking off the top of my head, I didn't look up the statute for my post.)

Anytime a parcel is described with a dimension as a controlling element and that boundary had been established at some point in the past, you will encounter latent ambiguity. It may be negligible or it may be of sufficient magnitude to cause you to recheck your research and your measurements.

Depending upon the time that the measurements were made, who made them, and the conditions of the site at that time, 2.25 feet in 100' (or are we talking about 65.25 feet? - specific reference most won't understand) might be within the realm of an expected error.

If the corner from which the distance is called was never monumented, or no monumentation of record, then there is no way of knowing whether the party who first laid out the dividing line properly established that starting point, or if they did so based on evidence which is long gone.

The party who first determined that distance may have done so from some previous record of an overall distance on the parent parcel and subtracted other measurements without ever verifying the 100' or the point from which it was called from.

The party making that first measurement, even if they started from the proper location, may not have been skilled at making measurements, may not have used a good or reliable measuring tool, or may have transposed a number in the writing.

Courts will typically not call a discrepancy of this magnitude a "mistake" with regard to the first or original on-the-ground establishment of a boundary. If it is a re-establishment that does not appear to fit with reliable evidence or pre-existing improvements that were likely made in reference to the original boundary, or if the establishment contains gross error, it will most likely be seen as a mistaken location by the courts. Gross error according to courts is a far different definition than that held by most surveyors. A surveyor would look at an error of 2.25' in 100' and be likely to think that the person who made the measurement either is incompetent as a surveyor, or was careless and made a blunder that went uncorrected. Many surveyors would consider that to be either illegitimate if not made by a qualified person, or translate the surveyor's technical mistake to a mistake of title (i.e. what was established is not the boundary).

In the cases I've read relative to a boundary being placed on the ground for the first time, mistake or gross error is recognized only when the entire parcel location cannot be reconciled between the description and what's on the ground, or where the basic shape or nature of the parcel is significantly different than as indicated by the description. Examples might be a parcel that was supposed to be a riverfront parcel that was laid out so as to be cut off from the river by a road and the land between the road and river (old case in ME, would have to look up but cited in Skelton); Where a boundary was established such that the land area was greatly different than as indicated by the map or description (smallest amount by area I've been able to find was a discrepancy of about 33% - case on the snake River, ID side that I can't recall the name of now); Or where a call to a particular ridge caused a boundary to not close (and added well over 100 acres) if the boundary were to be re-established on the called for ridge, but closed reasonably and contained approximately the called for area if a closer unnamed ridge were followed instead (A CA case of a rancho, White v somebody, IIRC).

A conveyance creates a parcel, but the first establishment of it on the ground (good faith, free of fraud & gross error, etc.) establishes and fixes the boundary location.

Bringing it back to Dave's example in the OP, that means that the west line of the east 100' is where the first person who was authorized to establish the line (landowners or surveyor hired by landowners) established the line, according to their measurement (including their measurement errors) and according to where they had established the point they were coming from. If there is no evidence to show who measured the distance, what equipment or methods they used, how they determined the location of the point they were coming from and where they determined it to be, but there is some form of reliable evidence as to the original location of the west line of the east 100', then the line is at that location, regardless of whether it measures 100', 102.25', or 90' back to the point the distance was called from as that point is established from the best remaining evidence of its location.