First I am NOT trying to deprive anyone of their Constitutional rights. OK we got that out of the way...
This is totally and completely hypothetical.
Imagine an east-west running Section line. Exhaustive search for the two section corners and one quarter corner has turned up nothing. The corners could be proportioned in from other existent monuments. Please assume the original monuments and accessories can't be found.
Let us say there is an old fence line roughly where you would expect the Section line is located and it is not terribly straight. It wanders up to 20' back and forth in rough country.
Let us also say a dispute erupted between the owners of the two Sections (who hold title by the Section numbers). This goes to Court and the Judge declares that the fence line is the boundary because there is nothing else. No one appeals therefore the Court appointed Surveyor sets monuments along the fenceline in compliance with the Court order and files a Record of Survey.
Is the fenceline the section line or something else?
Is the section line the proportioned line but it isn't a property line?
I would assume that the court ordered line between the two sections would become their common boundary. Any later conveyances from either estate would probably have to honor that line.
I would, however, be hesitant to use that court-ordered survey as evidence of a section corner location if I were surveying in an adjoining section.
> Let us also say a dispute erupted between the owners of the two Sections (who hold title by the Section numbers). This goes to Court and the Judge declares that the fence line is the boundary because there is nothing else. No one appeals therefore the Court appointed Surveyor sets monuments along the fenceline in compliance with the Court order and files a Record of Survey.
>
> Is the fenceline the section line or something else?
>
> Is the section line the proportioned line but it isn't a property line?
First, they do not 'hold title by the Section numbers', they hold title to the land that they occupy and control which is what the judge ruled.
The fence line is the property line and the location of that fence is what needs to be accurately described.
Remember, sectional and aliquot descriptions are designators for area, the least accurate means for describing property according to the priority of evidence list.
Usually, the last 30' to 60' of a fence can be relied on to indicate the location of the section corner if the section corner is the starting point for the fence when no other more reliable evidence is available.
There is no more reason to believe that any 'section' line is straight than the belief that any 1/4 corner 'must' be on a straight line between section corners.
The accuracy of the location of the existing physical evidence need only meet the accuracy requirement that applied at the time that physical evidence was put in place, and that standard controls, not the accuracy we can attain today.
Richard Schaut
You could have just said "Anyone except Dane."
I think the court decision is bindinng upon the owners and their successor's and assigns and it would not change anyother boundary. At least tht wht I am told by some folks who have lived through this type of thing. There are plenty of IBLA cases on when a fence maybe the best evidence of the boundary.
You could have just said "Anyone except Dane."
The fence line is the section line, making it the property line, as the owners have title up to the section line.
Just as a normal section line would follow the blazes made by the original survey party, the court-ruled section line would follow the "general" meanders of the fence.
Normally the court would say a bit more than that. But, if the fence, with all its twists and turns, is the boundary then it appears to be an agreed line and not the section line. If the fence is roughly used to indicate the original position of the boundary, then the resulting line that passes through the fence occassionaly is the section line.
Good thread. I haven't looked up any case law regarding the specifics of this case. But, I assume there are no other properties that call to or are based on that quarter-section line and the controlling quarter-corners? If there are, would those property corners be evidence as to where the 1/4 corners once were? If they are, wouldn't the surveyor in his/her due diligence have possibly reestablished the quarter-corners based on that evidence? So if there is absolutely, positively no evidence as to where the quarter-corners go, and it couldn't be resolved without going to court....all other possibilities are exhausted; then I would submit that the court-ordered boundary is the best-available evidence of the quarter-line location. That would be the fence with all of its jigs and jogs.
The survey markers that come along would help memorialize that fence location at the time the court decision was made. I would suggest that the fence itself is the boundary monument, but that the survey markers are accessories to where the fence was at the time, and on destruction of the fence, would help reestablish the corners.
Since this is hypothetical, lets just say the guy on the North side of this fence needs to pay his legal fees. Instead scraping up some cash, he just has his lawyer write up a description for 40 acres in lieu of cash.
SW 1/4 of SE 1/4 of Section.....
Survey that. It's perfectly legal.
The Section corners in question control not only the two sections the court ruled on but adjoining sections and thier aliquot parts, and possibly other lost corners beyond. I'd be hesitant to accept the fence as the section line without a lot more research/evaluation. The section corners may be existent. Just because the landowners told the judge it wasn't there doesn't mean it's not obliterated rather than lost.
Edit okay there was a exhaustive search and a record of survey. Sorry, the coffee hasn't kicked in yet. I'd still be hesitant to call the court ordered boundary line the section line.
DJJ
The court has no authority..
The court has NO AUTHORITY to changes the lines of the ORIGINAL SURVEY.
SECTION 5-22(2009 MANUAL)
"... EVEN THE COURT ITSELF POSSESSES NO AUTHORITY TO SET ASIDE THE ORIGINAL OFFICIAL SURVEY..."
The court has no authority..
> The court has NO AUTHORITY to changes the lines of the ORIGINAL SURVEY.
>
> SECTION 5-22(2009 MANUAL)
>
> "... EVEN THE COURT ITSELF POSSESSES NO AUTHORITY TO SET ASIDE THE ORIGINAL OFFICIAL SURVEY..."
No they don't. They do have the authority to resolve disputed property lines.
The line they identify May be the best available evidence of the original section line, or not.
I would not accept thier Property Line as the Section Line without further evidence and analysis.
I resurveyed a range line that had been "established" by two land owners and a judge going on the ground and deciding where the line went. That was their agreed on property line.
The resurvey uncovered a bearing tree that referenced a section corner some distance from that line. That was at the end of the Section/Range Line.
Two different lines.
DJJ
The court has no authority..
Agree, have seen some to blindly use a courts ruling to mess up 4 sections, then feel they are covered by law because the court made a justified ruling but used improper language that implied authority they did not have.
jud
> First I am NOT trying to deprive anyone of their Constitutional rights. OK we got that out of the way...
>
> This is totally and completely hypothetical.
>
> Imagine an east-west running Section line. Exhaustive search for the two section corners and one quarter corner has turned up nothing. The corners could be proportioned in from other existent monuments. Please assume the original monuments and accessories can't be found.
>
> Let us say there is an old fence line roughly where you would expect the Section line is located and it is not terribly straight. It wanders up to 20' back and forth in rough country.
>
> Let us also say a dispute erupted between the owners of the two Sections (who hold title by the Section numbers). This goes to Court and the Judge declares that the fence line is the boundary because there is nothing else. No one appeals therefore the Court appointed Surveyor sets monuments along the fenceline in compliance with the Court order and files a Record of Survey.
>
> Is the fenceline the section line or something else?
>
> Is the section line the proportioned line but it isn't a property line?
Fence line = property line per court order and ROS. The owners need corrected deeds.
Section line is no longer Property line between those particular owners and their successors in title. The section line maybe has been re-established.
The court has no authority..
Too many opinions solidifying based upon a dearth of pertinent facts. This facet of the discussion requires a question. Where's the court opinion? None of us can offer a reasonable or reliable opinion without knowing what the court considered or on what basis they ruled.
Dave, did the court evaluate the fence as evidence of the original line of the GLO survey or did they address it as an equitable issue?
If the court determined that the fenceline (along with any other supporting evidence) is sufficient evidence of the original section line as run in the field, then it's the section line. In doing so, they are not altering the original survey but determining it's location according to the best evidence presented to the court.
If they did not address the evidence in that manner, then it's just an adjudicated property line recognized as being acquiesced to and therefore established as a property boundary, and is not the original section line although it may in places be coincident with the section line.
I do not believe that "because there is nothing else" rises to the level of substantial evidence much less a preponderance of the evidence. I have no problem if the court decides that the fence is the best evidence of the boundary between the two parties and so states as a matter of equity. I beleive that a decision based soley upon "because there is nothing else" the fenceline IS the section line would come dangerously close to having the court excercise power beyond their authority.
In an IBLA situation where the other owner was the government, if you wanted to maintain the fence was the section line, then you would have to prove by a preponderance of the evidence that this was the case. The government on the other hand would only have to prove it was not the section line by substantial evidence.
Don't you think topo calls, accessories, line trees, parol evidence, for these lost corners and the other PLSS corners that would be suitable for control for a proportioned solution, would come into the picture?
Other items that would come into the dicussion are:
When was the fence built?
Who built the fence?
Why was the fence built?
Is there any evidence that the fence was built to monuments of the original survey?
Dave asked for a solution
...so did I. Survey this, based on the given information:
SW 1/4 of SE 1/4 of Section.....
Personally, I don't think they could pay me enough. I'd tend to hold the fence lines, put some half assed disclaimers on my plat, and then I'd be calling Ted and give him a quart of water.... but WTF who knows??
Then again, I ain't Larry P who gets to charge what the project is worth....
The court has no authority..
I know the hypothetical I posed is short on information.
It is purely hypothetical and not based on anything real.
Long day.