The whole question of whether fences are to be presumed to perpetuate the corners and lines as originally surveyed is often answered when one actually finds both in place, both the original marks of the survey that created the boundary and the fence that someone built according to their own mistaken idea of where the line was located.
For example, there is this corner that I found a couple of years ago in Kendall County, in the Hill Country West of San Antonio. The corner itself was a stone mound that had been built in 1889 (if I recall correctly) to mark a resurvey of a land grant made by the State of Texas. I set a new rod and cap marker at the center of the stone mound to give it an exact position.
and then there was the corner of the fence that had been built in the vicinity, evidently set back from the actual boundary corner to keep from destroying the original mound.
The fence ran from this unpromising start on a line that diverged well off the original line (by about 2 degrees), stopping well short (several hundred feet short) of where the original rock mound actually still remained in place with the stump of its bearing tree about 100 ft. away to prove it up.
When you see enough stuff like this, you tend not to give fence builders much credit for anything.
No Kent, The Fences Lead You To The Original Corners
One should not and cannot accept the fence without effort to at first reject it.
Paul in PA
No Kent, The Fences Lead You To The Original Corners
And one should not and cannot place a new mark without effort to at first accept the fence as best evidence of the established boundary.
That is a good find. I would hold the stone mound also under the same assumption that there were records establishing its date and intent as the original boundary. But a surveyor would be hard pressed not to hold the fence in the event the stone mound was not found or re-traceable.
.04'
It does make it tough to support the idea that fences should be accepted as evidence of an implied agreement as is argued elsewhere. I am of the belief that many fences in my area of Calif. were not located by much effort to understand or determine where the true boundary was located at the time. The adjoiners certainly had some level of agreement or acquiescence, but it often wasn't for the purpose of ownership delineation as much as it was to limit livestock movement. Our state courts have frowned on the idea that title is changed when the uncertainty of location was caused by complete lack of effort. They have recognized that fences often were not the result of a good faith effort of boundary location.
But then again, sometimes they were.
Ain't surveying fun.
Years ago I did a large survey in Green Valley, Arizona, and found the center quarter monument which had been set by a surveyor known for cutting corners, no pun intended. It was not at the calculated position based upon a section breakdown, but there was a very old mesquite fence in line with it, and I do mean old. Pretty strong evidence, right? Fortunately the rancher came by and told me he had moved the very old fence to match the new monument!
In our state the older fences line up with the stones more often than not. Yes there are exceptions like this example. Based on about 40 years of experience as a rule old fences do perpetuate original corners in the state I survey in when the only other evidence is written.
> In our state the older fences line up with the stones more often than not.
In Oregon you typically find the fence within a couple feet of the monument. In Oklahoma, much more typical to find the corner and the fence several feet apart - as in Kent's photo.
Looks to me like the fence to the right was built first, probably several feet inside the boundary on purpose. Possibly so the fence line could be ridden on either side without trespassing?
It is a case by case thing.
Obviously in the pictured case the stone mound is better evidence than the fence.
> I would hold the stone mound also under the same assumption that there were records establishing its date and intent as the original boundary. But a surveyor would be hard pressed not to hold the fence in the event the stone mound was not found or re-traceable.
I cheated and pulled the file to refresh my memory. That mound was actually made in 1888 to mark the NW corner of a land grant of 640 acres made by the State of Texas. The grant was one that had been made by the State in the form of a land certificate issued to a railroad company. The certificate entitled the railroad or its assigns to 640 acres of land that had to be surveyed out of the unappropriated public domain, along with a like quantity of land that had to be surveyed adjoining it for the benefit of the the Permanent School Fund.
The location of the land certificate by survey and the filing of the field notes of the survey with the County Surveyor and in the GLO were what completed the terms of the grant, the subsequent issuance of a patent by the State being essentially a formal acknowledgement of the grant. The patent for that land grant describes that mound and is based upon the resurvey made in 1888.
Even today, the adjoining landowners's deeds call for the line of adjoining land grants as the boundary and there is no conflict between the grants. If the mound had not been in place, the next best evidence of the footsteps of the 1888 surveyor would have been other stone mounds that he made at other corners, one fairly close by (493 varas away).
The mere existence of a pasture fence is not very good evidence of anything other than that there is a pasture fence there.
>In Oklahoma, much more typical to find the corner and the fence several feet apart - as in Kent's photo.
One of my favorite old fence experiences was in connection with a survey I made probably about 25 years ago in the Hill Country West of Wimberley. The boundary of the tract I was surveying was the line of an original land grant surveyed in 1881. One of the corners of that grant fell near the top of a hill where the 1881 surveyor had taken bearings to three different hills that were well known features with names that had made it onto the USGS quad sheet.
There were no records of any recent recovery of this corner, so I plotted up the bearing calls, after correcting them for the variation that the 1881 surveyor reported that he had used. The corner plotted in the vicinity of a wire fence that showed up on the quad sheet as well. Great, a place to search!
However, the fence running Southerly from the plotted location ran about five degrees off the bearing one would expect the 1881 surveyor's line to have. In that area, a discrepancy of perhaps ten minutes would be unremarkable, but five degrees is contrary to experience. Nonetheless, I searched two positions, one assuming the fence, an old cedar post and wire fence that looked as if it had probably been built in the 1920's or so, had been built to the line, and the other on the predicted bearing of the 1881 surveyor's line.
Nothing on the fenceline, but an intact rock mound found using the estimate of 1881 surveyor's line. That projection that found the mound was based upon some rough calculations using the fenceline at that top of the hill and the bearings to the hills, so the next step was to project backwards from the mound to see whether the mound at the other end of the line on the top of the hill could still be located.
I contacted the rancher whose land provided the best access to that location and he was obliging. He was an old timer. When I met him, he told me he'd lived on that ranch since he was a kid and seemed interested that I was searching for one of the original corners of the ranch. I explained to him what I was finding and how puzzling it was that the fence didn't follow the line. It turned out that the fence was built in the 1920's and he had helped build it when he was a kid.
He even recalled that they had no idea where the line ran and had just guessed it in.
> He even recalled that they had no idea where the line ran and had just guessed it in.
I've had similar conversations which has made me believe that was more the common case than not. Not only for ranchers but also for the timberlands in our area. Some forestors would create cutting boundaries which they freely admit were not meant to delineate agreement as to land ownership, but were simply a handshake agreement for harvesting limits.
Had a similar experience to Kent's with somewhat different results about 30 years ago. Retracing a farm description in Eastern Ohio to prepare for a transfer. The existing description, predating WWII, would not meet current transfer standards and had been rejected by the county.
While walking the farm two of the owners stated they were sure the north and east lines would be the most difficult to resolve. House had burned during WWII and property was not farmed since. Only used as family camping area. No wire fence along the northern portion of the eastern line and the northern fence line had been in disrepair, bulldozed and reconstructed by northern adjoiner.
Existing deed called for a corner in the eastern line near a spring house. I asked about the spring house and was told it was gone but the spring still was evident. We went to that location and started walking up hill along the approximate line of what they said had been a zigzag split rail fence over 40 years before. Nothing but wooded area now. I asked them and my rod man to spread in a line and look for flat stones. Found over 200 feet of them intermittently in zigzag pattern. These were at 16+/- foot intervals over a 500 foot long stretch. Located these a evidence of occupation.
At the northwest corner of the property (also section corner) found a stone mound about 10 feet into the adjacent pasture field. This was where the neighbor had bulldozed the line and rebuilt the fence. For generations farmers in this area had used tooth harrows weighted with rocks picked as they worked. The rocks were then dumped in fence corners. In the center of the mound we found a square stone, top broken off by either the bulldozing or brush hogging. When probed the stone was over 3 feet deep with riverbed gravel on all sides. Rock mound was over 50 feet in elevation above the nearest stream. Located all evidence of occupation and worked with the deed numbers to get locations to search or set corners.
Mean of the rail fence and deed distances from the NW corner put us within a few inches of a rectangular stone at the spring. Scraped the moss away and found a lazy X that reproduced the angle of the boundary lines. I held the old fence and rejected the new fence. Set capped rebar well below the tops of the two found stones and called for them as witnesses in the new description. All distances in the deed were very close. The only problem had been the last course was "returning to the place of beginning." Since no bearing or distance was given the deed was rejected.
Courtesy...
of Dennis Mouland:
Courtesy...
Constructive Notice? 🙂
I've seen many of those. That fence builder didn't want to disturb the corner. And he didn't grab the stones for tie-downs. Good for him!
It's traditional to remove the stones from the GLO mounds and place them in rock jacks around here. Why gather a bunch of rocks when there is a pile of them right there?
jud
Kent
please call 1-800-stretch-a-fence and we will be glad to go out there and correct the fence to the boundary location.
Best Regards,
Dave Karoly
Chief Fence Stretcher
Texas Stretch-a-Fence Company.
Note: implied Agreements still exist in California; Bryant changed the burden of proof, it didn't eliminate the Agreed Boundary doctrine.
Courtesy...
Pretty crazy monument. I wonder if it cost more than the fence; and/or than the value of the 6" of land that it is protecting. and
What good is the 6" of land to the owner who is blocked by his own fence from actually using it? and
I am sure that the value of that monument is probably more than the value of all his property-corner monuments combined. And
don't the actual corner monuments say the exact same thing?
Just some questions....
