This is a sketch taken from my worksheet for a project in the northwest corner of Maine. My apologies for the poor quality. The dark line on the extreme right is a straight line between two original cedar posts and marks a lot line that is supposed to be 100 rods long. The length is actually 1821 feet, but that is not the issue.
The line that meanders from one stone mound to the other, and is to the left of the dark line, is a meandering blaze line which I would bet is at lease 60 years old. This is forested, mountain land and used as a woodlot. The abutter to the east (right)is a very large international pulp and paper company. Oh, one more thing, they have just clear cut up to the blaze line.
The meandering blaze line at it's widest is 131.5 feet from the true line. My client is going to do a couple of divisions along that line. At issue is where to put the division monuments-on the old blaze line or on the record line. I know what I am going to do, but thought this might be the basis for a good discussion.
Very common in New Hampshire also; i.e. situations where the line has been well blazed for many years but the line is not straight.
To generalize, the surveyors I have worked for seem to honor stone walls and even wire fence as boundaries, but blaze lines (even old blaze lines) are often NOT held.
Of course holding to this principle (in your case) will open up a can of worms due to the clearcut.
I hope this thread gets some responses.
Exactly Perry. As you know many woodlot blaze lines are much more than scarred trees with paint every ten years. Paper company blaze lines usually are massive visual walls that shout out "this is the line, cut over this line and you are in a heap of trouble". Messing "with the line" is like slapping a UFC heavy weight champion in the face. It isn't a fair fight. 🙂
Even though the timber company might have large holdings then the correct line is the 'as deeded' line and not the meander line run along the trees.
It was probably done originally by a forester with a compass and would have little standing against a PLS stamp and survey.
I would worry a bit about the 1650' deeded length versus the 1821'. Did they use a rubber chain or something when they did the original survey?
Your client stands to lose about 3 acres if he concedes to the mistaken line.
dp
Considering the measurement was reported in rods, and it is mountain terrain, the precision of measurement does not strike me as unusual. Measurement with a rod is (or was) necessarily along the ground rather than horizontal. Typically the unit described the tool used to measure but the contrary might be shown. Even if it could be shown that a rod was used in a way to measure the actual horizontal distance, it might also be shown they were tallying by tens and missed one tally. At any rate, it seems from the post that the cedar posts are unquestionably the original controlling marks.
It's very difficult to run a compass line straight in this kind of terrain. I would think the paper company tried to blaze the correct line but merely missed it, as shown by the ends coming into the monuments. Classic case of trespass due to paper company failure to recognize the importance of a professional land surveyor in their operations. IN fact, I would argue this is intentional trespass because the company is a sophisticated entity and employs foresters who should have known a surveyor is needed.
The original line should hold against any theory of adverse possession or acquiesence. The line was not lost but merely haphazardly marked with an intent to mark the correct line. But, who's got money to fight a paper company. Course, if the trees in that area had enough value it might be worth it. In any case I would have to use the original line as retraced and try to get the parties to agree on some sort of settlement of the issue.
Duane
Just to be clear, I was not trying to cast any doubt on the authenticity of the monuments nor of Merlins measurements or judgement of same.
I would be curious though with the adjoiners deeds and holdings. It may provide Merlin with another chance to help with other owners and provide him with new revenues.
In Okie, if found guilty of trespass AND cutting timber then the general rule is treble damages. I have no idea what 3 acres of trees are worth (not knowing the species) nor how many times it may have been clear cut.
Clear cut in the places that I have worked means they take the trees and leave a huge mess to survey though. Ten times harder to run line that in a virgin forest area.
Deral
Deral,
I'm just guessing, but the timber probably was not worth all that much. Probably pulp operation that far north. If it was hard maple or cherry there might be a lot of money involved. Not sure about Maine either, but NY is similar to Okie, intentional trespass is treble damage and any cutting on State land is treble damage whether negligent or intentional. And when these suits are filed the damage is not limited to trees cut, but also includes claims for future losses based on skid tracks, saplings and seedlings destroyed, etc., etc.. I worked on one where a small time logger went about 10 feet over the line for about 300 feet. Unfortunately he had gone onto a wood products company lands. They sued for 3 million bucks. The insurance company (for the logger) ended up paying 10-20 k out of court I think. These were hardwoods but not that many of them.
Can't understand why a large corporation dealing in wood products would not retain a surveyor in this day and age. It seems unfair in NY that the State automatically gets treble damages but private owners don't. I know some States have made it illegal to cut without a survey first. Seems only sensible. One can't even put up a tent garage around here without a survey, but a company can still cut 10's of thousands of irreplacable trees (at least not in the lifetime of the landowner who loses them) with no survey.
Duane
Duane
Some of the land in Eastern Oklahoma owned by Weyrehouser (sp?) has had surveys but these are the typical boundary surveys where you get your corners but not a run line. Really dumb for a company that clear cuts along a line but that is what I have seen many times.
Maybe they have changed that today but back then they would have foresters or their own employees attempt to run between markers and would often wind up like the map that was shown.
60 years is a long time and the paper company could likely make a compelling claim that the blazed line is the boundary via acquiescence. In 1982, in Calthorpe v. Abrahamson (441 A.2d. 284), the Maine law court outlined the conditions which must be met for such a claim to be sustained:
"[The claimant] must show (1) possession up to a visible line marked clearly by monuments, fences or the like; (2) actual or constructive notice to the adjoining landowner of the possession; (3) conduct by the adjoining landowner from which recognition and acquiescence not induced by fraud or mistake may be fairly inferred; (4) acquiescence for a long period of years such that the policy behind the doctrine of acquiescence is well-served by recognizing the boundary."
But the burden of proof is on the claimant and (2) and (3) would be problematic in remote areas like this where the landowner may have never even seen the blazes and could quite credibly argue that any perceived "acquiescence" was by virtue of mistake -- "I just assumed the timber company marked the right line."
Certainly few can afford a hard legal fight with a huge paper company. But the paper companies have bigger fish to fry and are mindful of their public image. This one would perhaps settle on this in some relatively easy fashion (especially as it's already made its latest harvest). But without its doing so I would be quite reluctant to have my client warrant title to anything east of the blazed line. I've seen attorneys use "split convenants" in such cases -- Merlin's client's new lots would be conveyed in their entirety up to the record line but with the warranty convenants limited to the undisputed portion.
Regarding the 1821'/1650' discrepancy: this is par for the course in remote areas like this. Early Maine surveyors are known to have given "good measure" when laying out out the original lots in marginal land, and I've seen many woodland lots this far off. But the deeds were then drawn up based on "pre-survey" checkerboard maps and recite only the nominal lot dimensions.
Good point, map and largely seperated monuments are not enough. In fact that's probably the theory behind the NY law. All surveys of State lands are specified to include blazing or markers every so many feet in open areas. Good argument for clients to pay extra for line marking and maintanence. Hard to claim trespass is merely negligent if there is a survey map, monuments, and a surveyor marked line.
"[The claimant] must show (1) possession up to a visible line marked clearly by monuments, fences or the like; (2) actual or constructive notice to the adjoining landowner of the possession; (3) conduct by the adjoining landowner from which recognition and acquiescence not induced by fraud or mistake may be fairly inferred; (4) acquiescence for a long period of years such that the policy behind the doctrine of acquiescence is well-served by recognizing the boundary."
Item 1 is fulfilled.
Item 2: doesn't a heavily blazed and painted line amount to "constructive notice" on a woodlot?
Item 3 is problematic. There was certainly no fraud (I guess), but was there a mistake? What about the claim that the marking was not a mistake, but merely reflects the level of accuracy obtained on projects like this on a mountain side a hundred years ago? In short it meets the local standards of accuracy? Also, we don't know who did the original marking. Was it done by someone in my chain of title or in the paper companies chain of title?
Item 4: as stated, this line has been in place much longer than statutory requirement.
Having worked with large paper companies like this one I can tell you, it would take a life time to find someone with the authority to enter into an agreement. The only possible remedy would be a lawsuit, but the value of the land and lost pulp wood isn't great enough to cover the time and expense.
In the vast paper company holdings in Northern New England and New York, marked lines take on a much more important quality than they do on smaller parcels of land that aren't wilderness-woodlots. IMHO
Merlin:
"Item 2: doesn't a heavily blazed and painted line amount to "constructive notice" on a woodlot?"
I don't think it does. I believe "constructive notice" refers essentially to what's on record at the Registry of Deeds. Now, if the blazed line is explicitly called in the pertinent deeds -- whole new ball game![Edit: but it may well constitute actual notice. In Devine v. Tierney, 27 A 2d. 134 (1942), the Maine court said: "Where an intending purchaser has actual notice of any fact sufficient to put him on inquiry as to the existence of some right or title in conflict with that which he is about to purchase he stands charged with notice of that which inquiry would have revealed by the exercise of ordinary diligence. This, in the judgment of the law, is actual notice inferred or implied [emphasis added] as a fact from circumstances and the equivalent of actual notice proved by direct evidence. As to what facts are sufficient to excite inquiry in such a case and charge the purchaser with implied actual notice under the statute there is no hard and fast rule. They must be such facts as would lead a fair and prudent man with ordinary caution to make inquiry." Subsequent edit: But would a "fair and prudent man" detect a bow in the line even if he did walk it? Would he hire a surveyor to check it out when the land is remote and not worth much? Hmmmm....]
"Having worked with large paper companies like this one I can tell you, it would take a life time to find someone with the authority to enter into an agreement."
I certainly hear you, and that's why I mentioned the "split covenants" option. My experience is that BLA's are getting harder and harder to get. I just did one with a local couple and they got their lawyer involved, he got the Planning Board and CEO involved, and what clearly benefits all concerned went on for weeks and weeks. If a closing had been imminent they would have done something else.
The paper companys do not own much land anymore. The real estate investment trusts (REIT's) and timber investment management organizations (TIMO's) control most of what was traditional paper company land in Maine. For example, Plum Creek - a REIT, buys land from SAPPI and in turn agrees to supply SAPPI's mill with pulp wood. The paper companys still own the mills, but not the land.
We had a recent case where a large utility company from Quebec cleared to the straight line set out by surveyors, who used original monuments about 1-mile apart. In doing so, the utility company cut most of the blazes that were on the servient estate - the blazes were not in a straight line and were indeed mostly within their easement limits. The map looked very much like yours, but this is not the same case - the case I refer to is west of Moscow. Management wasn't too happy about the situation, but after consulting with some of Maine's finest, realized that we didn't want to fight the fight in court, especially when two original monuments were found.
Lattitude 45: the name of the adjoiner was changed to make the post more generic and to protect the actual participants. Your assumption as to the type of land company is correct. The original blazing however was done by a multinational paper company before they sold their timber land to the international land holding company.
Cee Gee: there are many equitable doctrines and principles that could be used to establish ownership to the blaze line. One that stands out is Maine's "Adverse Possession by Mistake" statute.
Are the parallel lines a road or a creek? It looks like the "blazer" probably started at the south corner and headed north trying to keep that feature to the east of the line, then corrected once he got past it. If it's a creek, he probably didn't want to get wet. Definetly an amateur job of boundary line marking that is now causing problems 60 years later ....
Pseudo,
That feature is a skidder road. My theory is that line marking on steep slopes tends to gravitate down slope as is the case here.
Would the parties go for a compromise where the straight line is held between the end monuments, but it is agreed that no damages will be sought for the trees already cut?
Bill: That is certainly a good offer for all
Bill
That would be my thinking also. It does not appear that the curved line was run maliciously and now that they are aware of the problem then that seems to be an equitable solution.
And there is really not any need for any sort of paperwork, other than the plat and the line staked, that needs to change hands. The boundary is between the monuments on each end. The blaze line just failed to run the actual boundary.
Deral
