TPR
> I didn't read your cited case, but your quote here:
>
> lands may be acquired by way of the acts and conduct of abutting landowners, requiring the application of an equitable estoppel. Two of those methods of establishing a boundary are (1) boundary by agreement, and (2) boundary by acquiescence.
>
> leaves a lot to be desired in showing that boundary line agreements are involved in acquiring land?
>
> Seems like, the point that Brian is making, which I agree to, is the fact that boundary line agreements only show where the boundary line is, as in ". . . Two of those methods of establishing a boundary . . .
>
> Land has not been transferred!
>
> I will venture to say that some context is missing in your quote!
>
> Keith
Keith, first, there are four paragraphs quoted above, for context. Secondly, I'm not talking about a boundary line agreement ... I'm talking about the legal doctrine of "boundary by agreement" as outlined above ...
Now, Keith, seriously, consider this example:
-You have two monumented lots in a subdivision
-neither land owner knows where the dividing line is or where the monuments are
-the owner to the south builds a fence 10' north of the line
-both owners possess to the fence for the statutory period
-one gets a survey, finds the old monuments, learns the fence is not on the deed boundary, goes to court to recover the land
-judges says, "sorry, but I find the fence line has become the true boundary line by acquiescence or boundary by agreement"
Now, are you going to tell me that the guy to the south didn't acquire 10 feet? Are you going to tell me that title to that 10 feet wasn't lost by one party and gained by the other? Please ...
TPR
I am off my "high" horse..... actually of two horses I rode this evening, the tallest is only 15.2 hands... not real "high", but I guess "high" enough. Anyway.....
I'm not sure why you have such an attitude, but whatever. Have you even read the King v Carden decision? I have.
Just because a decision uses the word "acquired" in the vicinity of the words "agreement" and "acquiescence" doesn't mean that the cited doctrines are technically on point, and are an actual "transfer" of land. There are many cases across the country that agree with the Idaho case I cited. You can research it further if you like.... or not. Either way, it doesn't matter to me. I have researched the topic in my areas of practice to be comfortable with my understanding of the law. However, it doesn't mean I will quit researching and learning any time soon.
Have a nice evening.
TPR
Well, you're 21:15 post struck me as a bit condesending with your snarky comments about carefully rereading your posts and super fancy measuring equipment, but whatever. You can have your Idaho case, I can have my Florida cases ... but you're not going to convince me that when judge rules that a land owner has lost a piece of his property due to his own ignorance of where his deeded boundary/monuments are, that their isn't a gain/loss of title involved ...
TPR
I did not mean to be condescending. Sorry you took it hte wrong way.
"... but you're not going to convince me that when judge rules that a land owner has lost a piece of his property due to his own ignorance of where his boundary/monuments are, that their isn't a gain/loss of title involved ..."
OK, I think I see why your not understanding the non-transfer of land.
The uncertain boundary was "settled" at the instance in time that the requirements are fulfilled - when the landowners were unaware of the "true" line - not at the time the judge made the decision. The judges decision only confirms that the boundary was settled at the previous point in time. There was no land lost (hence the usual requirement of an uncertainty or dispute).
Yes, one could say that land was lost or gained when looking in hind-sight, considering that the "true" location could have been determined by a proper survey. However, the boundary was already settled before anyone was aware of a loss or gain. In fact if the parties knew of a loss or gain at the time of agreement, usually no agreement was made. Estoppal may be another matter however.
As to the boundary by agreement vs boundary line agreement. I'm not sure what your assertion is. A boundary by agreement can be either expressed or implied. A written boundary line agreement is an example of an expressed agreement.
What usually happens in my practice (and I assume many others) is that when the evidence I find points to a previous "boundary by agreement/acquiescence" situation, I inform the landowners of my evidence and conclusions. I then recommend a written (express) agreement to "memorialize" the "meeting of the minds" and place it in the public records to prevent disputes in the future.
Here in OZ.... compulsory acquisition
Here in OZ.... compulsory acquisition.
RADU
TPR
> I did not mean to be condescending. Sorry you took it hte wrong way.
>
> "... but you're not going to convince me that when judge rules that a land owner has lost a piece of his property due to his own ignorance of where his boundary/monuments are, that their isn't a gain/loss of title involved ..."
>
> OK, I think I see why your not understanding the non-transfer of land.
>
> The uncertain boundary was "settled" at the instance in time that the requirements are fulfilled - when the landowners were unaware of the "true" line - not at the time the judge made the decision. The judges decision only confirms that the boundary was settled at the previous point in time. There was no land lost (hence the usual requirement of an uncertainty or dispute).
I'm sorry, but I do not understand how you can conclude there was "no land lost" (or gained, for that matter) by a party when a monumented or surveyable line is determined by a judge to be irrelivant. The timing, whether it be at the moment the claim ripened, or the moment the judge issues the order, doesn't matter. The fact is, when the lot was platted or a deed signed, the lot lines were fixed in a certian location. At some later point in time, the boundary lines changed due the parties occupying that land differently than intended. One party lost land, on party gained land.
> Yes, one could say that land was lost or gained when looking in hind-sight, considering that the "true" location could have been determined by a proper survey. However, the boundary was already settled before anyone was aware of a loss or gain. In fact if the parties knew of a loss or gain at the time of agreement, usually no agreement was made. Estoppal may be another matter however.
If I understand this paragraph correctly, you are basically saying that at the time the claim of "boundary of agreement" ripened, there was a loss/gain by the parties, they just didn't realize it. That's exactly what I'm saying, too. Boundary by Agreement resulted in a loss/gain of title ... it doesn't matter that it may be several years down the road before a judge makes it official ... it happened when it happened as a result of the "boundary by agreement" doctrine.
> As to the boundary by agreement vs boundary line agreement. I'm not sure what your assertion is. A boundary by agreement can be either expressed or implied. A written boundary line agreement is an example of an expressed agreement.
I'm just trying to make it clear that there is a difference between a boundary line agreement and the legal doctrine of "boundary by agreement". A boundary line agreement is typically a written document that transfers deeds to resolve a boundary line problem. It's issued with intent to solve a problem. "Boundary by Agreement" is, as you said, a lot like acquiscense. There doesn't have to be a verbal or written agreement, there is no exchange of deeds.
The fact of the matter is, written boundary line agreements rarely end up in court, so there is not much case law on the topic. There is a ton of case law where people are claiming "Boundary by Agreement", bases solely on fences and actions, rather than words and documents.
>
> What usually happens in my practice (and I assume many others) is that when the evidence I find points to a previous "boundary by agreement/acquiescence" situation, I inform the landowners of my evidence and conclusions. I then recommend a written (express) agreement to "memorialize" the "meeting of the minds" and place it in the public records to prevent disputes in the future.
TPR
I'm going to support Brian and Keith here. So is the Oregon Court. In Gibbons v. Lettow 42 P3d 925; 180 Or.App. 37 (2002) the court stated, quoting Ross v. DeLorenzo, in part:
" We begin with their claim of boundary by agreement. There are three essential elements:
....."First, there must be an initial uncertainty or dispute as to the 'true' location of the boundary. The stated purpose of this requirement is to prevent the agreement from falling within the Statute of Frauds or violating other real property conveyancing requirements, for it establishes that the parties are resolving a dispute by mutually fixing an unknown boundary rather than by making a conveyance of land. ....Ross v. DeLorenzo, 65 Or App 586, 590, 672 P2d 1338 (1983)...."
TPR
I can understand your logic, its seems that some land must have been transferred. The Statute of Frauds doesn't allow the transfer of title without a written conveyance. But how do owners transfer land when they don't know where the exact line is, that's the uncertainty requirement.
Usually the Judge doesn't rule in a boundary by agreement case that either party lost any land. That's maybe the way a surveyor sees it but not the law. The law sees an uncertain boundary where the parties can agree to the line. This settles a dispute or the uncertainty and is good as far as the law is concerned. If the line is not uncertain or in dispute and the parties want to move it they can by conveyance only (in writing).
The Florida case you posted looks about like standard boiler plate to me except for the courts dancing around and using the expression acquired land. Maybe not all courts are totally informed also. It's not very common for a court to order an exchange of quit claim deeds to settle an uncertain line and courts would not intentionally violate the Statute of Frauds.
I didn't review the case from Utah where they clearly stated the no conveyance concept until a few months ago. There is lots of cases that make up the sum total of the common law. I finally read the case from the 1920's . I suppose I just hadn't looked far enough back (actually it was pointed out to me by another surveyor that I'm lucky to even be in his shadow).
Looking back what amazes me is my ignorance to the law and how even the formal surveying education I got never taught me this stuff. Actually the text books I used were actually misinformed and based on surveyors made up rules and logic instead of the law. Talk about a profession sliding off the rails and losing it way, pretty amazing. It's harder to unlearn something taught wrong than to learn it right to begin with. You must break an old habit before a new one can be installed.
I rarely deal with a situation where there is a verifiable monumented line that has been lost and become uncertain. Most times for me there is no record of any monumented line or original survey (after the GLO). They just subdivided it as they pleased, wrote a simple metes only description and never left any survey records. So uncertainty is the norm not the rule. So surveyors are upsetting what has been established for decades when they start doing their thing from the proportion from proportioned section monument and staking descriptions that fit on paper but never on the ground. Without relying on long established (on the ground) visible boundaries I got about nothing in some areas. The weird thing about it all as it's peaceful in the county side as long as the surveyors stay away. Suppose one shouldn't think about that or it will drive you nuts.
TPR
I really don’t see how that quote is inconsistent with anything I’ve posted. Sure, the parties had no intention to convey land. That doesn’t mean they didn’t do so by accident.
TPR
"A boundary line agreement is typically a written document that transfers deeds to resolve a boundary line problem"
???????
Why have a boundary line agreement that "transfers deeds" when you can just "transfer" the deeds?
A boundary line agreement (I'm not referring to the document titled boundary line agreement, see pg 343-344 of Lucas's new book) is an agreement (kinda similar to a contract, which also can be either expressed or implied) in which the landowners have agreed upon an uncertain or disputed boundary. A boundary line agreement doesn't have to be in writing (obviously it is better if it is in writing, and better yet if properly notarized and recorded).
"The fact of the matter is, written boundary line agreements rarely end up in court"
True. That is the advantage of having agreements in writing, it is difficult to dispute a properly written and executed document.
Typically it is easier to find evidence and proof of express agreements than implied agreements. But both are still agreements, not the transfer of land.
TPR
> "A boundary line agreement is typically a written document that transfers deeds to resolve a boundary line problem"
>
> ???????
>
> Why have a boundary line agreement that "transfers deeds" when you can just "transfer" the deeds?
>
> A boundary line agreement (I'm not referring to the document titled boundary line agreement, see pg 343-344 of Lucas's new book) is an agreement (kinda similar to a contract, which also can be either expressed or implied) in which the landowners have agreed upon an uncertain or disputed boundary. A boundary line agreement doesn't have to be in writing (obviously it is better if it is in writing, and better yet if properly notarized and recorded).
>
> "The fact of the matter is, written boundary line agreements rarely end up in court"
>
>
> True. That is the advantage of having agreements in writing, it is difficult to dispute a properly written and executed document.
>
> Typically it is easier to find evidence and proof of express agreements than implied agreements. But both are still agreements, not the transfer of land.
I think it's safe to conclude with "But both are still agreements, not the intended transfer of land."
However, such an "agreement" could very well result in an unintended transfer of land.
I meant to say "exchange deeds" rather than "transfer deeds", but I think you know what I meant. The most common way in which I've seen boundary line agreements executed is with an exchange of quit claim deeds over the disputed parcel. I've also seen a legal description written that defines a new dividing line, and both parties sign a document agreeing to that line.
Now, I think Lucas needs to explain further how you can have an "expressed" boundary line agreement that's not in writing? Doesn't that violate the Statute of Frauds? If it's a contract, and it involves land, it has to be writting. Oral contracts are not good enough, and a court should throw that out in a heartbeat. That's why "boundary by agreement" works. Per what Mark quoted above, the parties have no intention of conveying land (in the same way a written boundary line agreement would), they are just basically saying they don't know where the line is, don't want to hire a surveyor, so they take a SWAG at it. No contract or conveyance intended, therefore no Statute of Frauds.
But like we seemed to agree upon earlier, just because they were not aware at the time of the agreement that one party was losing/gaining land, doesn't mean that the loss/gain didn't happen.
Leon
Here's another Utah case:
BROWN v. MILLINER, 120 Utah 16 (1951), 232 P.2d 202
"A review of the Utah cases involving boundary disputes reveals that it has long been recognized in this state that when the location of the true boundary between two adjoining tracts of land is unknown, uncertain or in dispute, the owners thereof may, by parol agreement, establish the boundary line and thereby irrevocably bind themselves and their grantees. Rydalch v. Anderson, 37 Utah. 99, 107 P. 25; Tripp v. Bagley, 74 Utah. 57, 267 P. 912, 69 A.L.R. 1417. In the latter case this court pointed out that when the location of the true boundary is known to the adjoining owners any parol agreement between them establishing the boundary elsewhere would be an attempt to transfer an interest in realty without complying with the statute of frauds. But, we stated, if the location of the true boundary is not known to the adjoining owners, a parol agreement between them fixing its location is not regarded as transferring an interest in land but merely determining the location of existing estates."
TPR
If I have no intention of conveying land I'm sure as heck not going to sign a quit claim deed that conveys land.
Another problem with this is that in my state conveying land triggers subdivision ordinances which require public review, fees, time, and being told by reviewers without a clue how to do it. It takes away landowners rights to settle their boundary uncertainty. Yeah let's get the recorders and title insurance folks in the mix also (even more clueless about boundary law). We should print these quit claim boundary agreement forms in pads to use on about every survey. Its like an auto mechanic that recommends a valve job to fix a problem with your engine. By the time they tear it down, replace or repair all the parts and put it back together with all new gaskets and such, pretty good chance they will fix the problem they couldn't figure out to start with.
Let's just quit claim every problem boundary in the US. It surely will work at least until the next survey.
Brian
Here is the 1920's cite:
"An oral agreement, however, fixing a dividing line between adjoining landowners is not within the statute of frauds when the true line is uncertain or in dispute, because such agreement is not regarded as passing title to land but "determines the location of the existing estate of each, and, when followed by possession and occupancy, binds them, not by way of passing title, but as determining the true location of the boundary line between their lands." Berghoefer v. Frazier, 150 Ill. 577, 37 N.E. 914.” Tripp v. Bagley, 74 Utah 57, 276 P. 912 (Utah 12/11/1928)
Leon
As an interesting side note, in the Brown case I cited, therein lies proof that COGO jockeys existed even 60 years ago!!!!!!!:
"that part of the Northeast quarter of the Northeast Quarter of Section 15 lying on the southwesterly side of the Weber River containing 10.61320 acres."
Brian
Yeah, that's a good one.
I've always considered Utah metes without bounds bounds descriptions to just be long form coordinate lists waiting for GPS/GIS to be invented. They had us by about a hundred years or so. What else can you extract from something like: Beginning at the center of section, thence North 500 feet, West 400 feet, South 500 feet, East 400 feet to POB.
Leon
I've always thought that Utah had too big of an influence on Southeastern Idaho. You've confirmed my suspicions!! So, Utah was the source of all those dandy descriptions!! Thanks guys. 😉
Now if we can just find the source of the COGO jockey, coordinate staking, Chapter 3 is God, boundary dispute creating surveyors.......
Or, at least figure out how to edumacate them in the errors of their ways......
TPR
You're confusing topics. Again, you can have a "boundary line agreement" where parties, for example, resolve a boundary problem by exchanging quit claim deeds. You can have "boundary by agreement" where parties unintentionally exchange/loss/acquire land through their acts. Most court cases discuss the later, because there is really no controversy in the former.
Sounds like a seminar in the making, to me.;-)
LRDAY is flat wrong about unwritten rights.
Unwritten rights to land here in the US do exist and are the subject of Black's definition of Alienation as I have posted repeatedly.
The appraisal of title material I have posted also lists the three specific inaccurate description situations as title defects. Note that the appraisal of title material was scanned from a law school textbook.
Lawyers and judges have problems recognizing unwritten rights because they are not qualified to enter onto the land, recover and analyze physical evidence.
Looking to our courts for any useful guidance is foolish. Warren Burger, Chief Justice of the US Supreme Court, in his 1984 annual report on the state of the judiciary stated that the US legal system was no longer acceptable for a civilised society so, expecting our court system to provide meaningful guidance for surveyors is like expecting a color-blind individual to give clear instructions regarding color cordination.
Richard Schaut