Courtesy...
I would guess the story behind the purpose of that sign involves many large checks written to at least one attorney. :-O
Courtesy...
I would call that actual notice but effectively they operate the same.
Kent-
One of the worst decisions in Ontario's boundary history:
IMVHO, unfortunately the judge, who is the granddaughter of a surveyor, had to deal with the evidence that she had from the lower court that was not reasonable at all.
Not only was the north/south "lot line" fence at its northern end over 800' west of the logical position by mathematics (the block total of 5, 1320' wide Lots was within 7' of the original Block's supposed width) but the north end fence's intersection was about 130' south of the south limit of the Surveyor General confirmed position of the south limit of the east/west Original Road Allowance's south limit.
Yet the southernmost corner of the Lot line was nearly perfect in its mathematical position !
Stare Decisis from that decision suffers !
YOS
DGG
Courtesy...
I agree but I would call it ACTUAL NOTICE :woot:
Courtesy...
actual notice=good
ACTUAL NOTICE:woot: =BETTER 😀
I believe that boat sailed long before B v B.
Take a read of the Clapp v Churchill (1913) and see what you think. Kind of different in that the true boundary was actually in place, it was just hidden. But still the justices stated that one cannot assume the fence and row of trees was an agreement line.
Armitage v Decker (1990) cited the above case specifically in regards to the issue of implied agreement when the justices said: "...On the other hand, proof of acquiescence in the existence of a fence without evidence of an agreement to take the fence as a boundary is not sufficient to establish an agreed boundary..."
Based on some self-education I have been doing lately let me try to analyze Kent's scenario as pictured.
Every boundary determination includes two questions, what is the boundary (law) and where is the boundary (fact). I accept that Kent is diligent and has found nothing that would change the "what," some examples are a boundary line adjustment, prior court decree or evidence of another change.
First, what. Kent provided this information, it is a grant boundary corner (if I understand correctly).
Second where. We have a lot of evidence for this, grant documents, field notes and plats of the original survey, monuments and potentially evidence of where lost monuments once were located (such as topo calls, fences and measurements in the deeds and field notes). It is likely we will find conflicts in the evidence (such as the Deed says 640 feet but actual measurement is 620 feet). Common law has handed down standards for properly weighting and evaluating evidence. The monuments are first, then measurements from notes, deeds and patents. In this case we have the original monument so as a conclusion of fact the monument is the corner location in "what" above. The fence was considered but disregarded because it conflicts with the superior evidence of the monument.
I don't have Clapp but I would appreciate a copy. The only thing I have found is some commentary from 1915 & 1916.
Holy he77, what did I just say LOL.
Just for the record I meant Clapp vs Churchill the case, not something else ;-).
The monuments are first, then measurements from notes, deeds and patents. In this case we have the original monument so as a conclusion of fact the monument is the corner location in "what" above. The fence was considered but disregarded because it conflicts with the superior evidence of the monument.
You use original monument only once in your above comment. Use original undisturbed or the perpetuation of the original undisturbed monument all the way through and I am in full agreement. Any old thing found near where a monument is expected to be located does not an original undisturbed or the perpetuation of the original undisturbed monument make. Each case must be judged alone using good judgement and checks, any monument found that does not reflect the same care and precision of other local monuments could, be with good cause, be rejected. Whatever the case, I get the owners involved and they usually want what their deed documents call for and will move fences if needed, giving them that choice is much more important than any surveyor making an ownership decision he has no authority to make. Even the monuments we recover or set are little more than something in the ground that reflects an opinion of a surveyor who does not own the land. Acceptance and time is the only thing that makes any of the monuments we set gain legal status.
jud
>Each case must be judged alone using good judgement and checks, any monument found
>that does not reflect the same care and precision of other local monuments could, be
>with good cause, be rejected."
What your refer to here may come under the heading of "absurd result." Generally the rules and laws handed down for us to use are not allowed to make an absurd result. What this means in terms we understand, distances, is hard to nail down exactly because usually the Courts don't make decisions in those terms.
An example could be a 100 year old subdivision with several rows and columns of 200' square lots. The original surveyor did a good job getting all of the monuments within 0.5' of the mathematically exact position. Say one monument in the middle is 25' off. Although the rule favors original monuments in this case the rule would cause an absurd result and good judgment may call for setting a new monument. Obviously there could be other considerations at play such as partition walls and structures built in reliance on the monuments.
>Acceptance and time is the only thing that makes any of the monuments we set gain
>legal status.
I would say acceptance or time. Time is not always required such as in a legally valid agreement.
Sometimes fences are just fences put where snow won't impact them or the terrian is agreeable. Then they can end up looking like this:
Same here in Jefferson County!
Okay I have read the case.
Essentially my understanding of what the court is saying is long-standing acquiescence CAN infer an agreement (what BvB overturned) but it CAN'T infer uncertainty. In the facts given the original stakes were found therefore there isn't uncertainty therefore any agreement would be an illegal property transfer. Also the court is saying there was no participation from the defendant in uncertainty.
They handle the adverse possession question by saying one of the required elements isn't met, that is payment of taxes.
Other cases from this time period apparently do allow uncertainty to be inferred but I haven't read them yet. This case is issued by the Supreme Court, Department Two. I'm not sure if that is the Supreme Court or an Appellate Court but apparently there were other departments and they didn't necessarily agree with each other.
Also check out...
Schwab v. Donovan, 165 Cal. 360
This is a PLSS lot line where a fence is not on the lot line per a survey made after several decades of acquiescence...
"This evidence, taken as a whole, clearly brought the case within the well-established doctrine that when the owners of parcels of land divided by a common boundary described in their deeds, "being uncertain of the true position of the boundary so described, agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.""
COME ON!!!
[sarcasm]COME ON!!!
Where's the guy on here that always insists that the fence is the line, no matter what you find!!!
Some stray piece of metal that got held as the corner and a fence built, no matter, that must be the corner!!!
Forget that, you find some interesting monument looking thing, that must be it!!![/sarcasm]
Yes, this is sarcasm.
> 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.
>
Kent,
If you didn't find the mound, would you, in practice, hold this fence as the best evidence of where it was, or would you tend to hold your measurements.
COME ON!!!
For some reason discussion of the various common law boundary doctrines gets heard as, "hold the fence no matter what ALWAYS!"
[sarcasm]It is like some people's computer changes an actual post based on actual common law principles to "hold the fence no matter what ALWAYS!" even though it has nothing to do with fences in fact the word fence never appears in the post.[/sarcasm]
> If you didn't find the mound, would you, in practice, hold this fence as the best evidence of where it was, or would you tend to hold your measurements.
Well, the real inquiry is where the corner was made. In practice, if the mound had been disturbed, the rocks that had made it would be somewhat scattered around the position where the mound had been. Considering that the 1888 survey reported a distance of 493 varas from another mound East of the one in the photo, and the actual distance found by me between the same two mounds was 493.510 varas, the 1888 surveyor's record was a much better basis for following his footsteps than that goofy pasture fence would have been.
If you know that a fence obviously doesn't follow a boundary, then it's a stretch to say that one post of it actually must be presumed to perpetuate some corner of that same boundary. I wouldn't want to take that theory into court myself.
I think you're probably right. I think I read too much into it based on Armitage v Decker (1990) citatation of the case.
Both cases interesting reads.