If the boundary is not established how and who establishes it. I say only the landowners can establish a boundary. So we have this line(s) where the boundary via the law has not been established on the ground but the boundary has been created on paper in the record. A surveyor doesn't have the authority to establish the boundary, only the landowners do. If the line isn't established you can't retrace what doesn't exist. I suppose you could be a first surveyor and mark the line and then let common law take it's course and the landowners accept the line and treat it as a boundary and over time the line would be established by the landowner's actions.
If you are to be the original surveyor, then you would mark the line for the landowners and then the landowners would agree/convey to the line and enter the line via their actions accepting your markers as an original survey of the line. The line is then established by the landowners using the work and monuments of the surveyor.
It's a bit amusing that surveyors mark non established lines all the time that require the acquiescence over time of landowners for the line to become established. At the same time some of these surveyors will reject lines that have been established by the actions of landowners. The the very thing needed to establish their own survey lines they reject as establishing boundaries. Go figure!
The will, in this exercise, established the boundary. Fast forward 8 years and someone came out there and "attempted" to place the final wishes of someone on the ground. Fast forward 60 years and someone is retracing the first retracement.
You'll get little argument out of me that the boundary could have moved, with respect to adverse posession, during that time; however, one would be remiss in their duties to the public, their client, and the adjoining landowners, if they didn't look WHERE it was supposed to be and not where someone in 1958 placed it (incorrectly).
You seem to want to jump the gun and go to the fence. That's fine, but you still have to make sure you carry the one in that math problem so you get the right answer.
As far as the professional on the ground, you'll also get no argument out of me that deed stakers suck, but you better know what the deed looks like, then the occupation, to then decide on whether some other law has kicked in. By your rational, once the fence is strung between the iron rods, then after whatever your states time is, the line now haw a bow in it? That's insane. Sometimes, it's just effed up and you have to help the landowner work out the details but you better hunt the corners in the mean time.
Of COARSE, your mileage may vary in Utah. 🙂
Did the will establish the boundary or create the boundary?
I don't just jump on a fence. Our law says if adjoining landowners treat some visible feature as a boundary for twenty years then the line has been agreed to. You could still challenge it in court where a judge would go over the evidence that hopefully the surveyor had sought out. So what you are looking for is the evidence that establishes the boundary. Usually in the problems that I see the deed isn't of much value as there will be almost no calls to any markers, just a set of bearings and distances, barely more than a list of point coordinates. So the question of whether the boundary is physically established or not is on the landscape not in the deed. Many times there is clear evidence of where the landowners have treated something as the boundary for decades. The only thing the deed will do is miss it, many times the POB can't even be exactly identified. The courts ain't blind to this, they've set fairly simple rules to follow to sort it out. You don't want to go to court or send your clients to court, but if you do hopefully you will have followed the evidence to the proper law.
Many states give all the weight to the paper and not the reality. In those areas sooner or later enough dirt, fences, roads and other improvements of old will have been moved to make everything just peachy like the paper record. It's more efficient to change the paper.
> If the boundary is not established how and who establishes it. I say only the landowners can establish a boundary. So we have this line(s) where the boundary via the law has not been established on the ground but the boundary has been created on paper in the record. A surveyor doesn't have the authority to establish the boundary, only the landowners do. If the line isn't established you can't retrace what doesn't exist. I suppose you could be a first surveyor and mark the line and then let common law take it's course and the landowners accept the line and treat it as a boundary and over time the line would be established by the landowner's actions.
>
> If you are to be the original surveyor, then you would mark the line for the landowners and then the landowners would agree/convey to the line and enter the line via their actions accepting your markers as an original survey of the line. The line is then established by the landowners using the work and monuments of the surveyor.
>
> It's a bit amusing that surveyors mark non established lines all the time that require the acquiescence over time of landowners for the line to become established. At the same time some of these surveyors will reject lines that have been established by the actions of landowners. The the very thing needed to establish their own survey lines they reject as establishing boundaries. Go figure!
Dead on Leon.
A scrivener cannot establish a boundary, the scrivener writes the description of the land that is used in the conveyance which will create the boundary. This defines "what" is the boundary.
The boundary can only be physically established on the ground by the actions of the landowners (this defines "where" is the boundary). A surveyor can neither create a boundary nor establish a boundary, all he can do is aid the landowners when asked to do so. In my case, there was a conveyance (the what), but no attempt what-so-ever in establishing the boundary on the ground (the where is it). That is what I am aiding them in doing.
I'm with you on this one Kris.
"each tract is described, not with bearing and distance but with general directions, corner descriptions, adjoiners names and which child gets which lot."
The lots were created and conveyed to some type of monument (corner description). If what ever corner was described can be found, that is where it goes. Unless of coarse the Will is in error, such as the described corner was not within the boundary of the orginal tract. Even in that case though, I would hold that corner for line and intersect the true boundary line. While they can't deed or Will to a tree they don't own, they can surely deed towards it.
Idiot Wind has not provided the full description he is mentioning, but obliviously he has found enough evidence of that description to know the 1958 surveyor did not follow it. If the description from the Will was too vague to retrace, how does Idiot Wind know there is a problem.
Sounds to me like the 1958 surveyor either:
A) did not have the Will
B) did not read the description correctly, or
C) was attempting a lot line adjustment, but the accompanying paperwork never happened.
In any case, until someone agrees to do a boundary adjustment, I put the line where the Will says and show underlap or overlap created in 1958.
Before, everyone jumps on me about that statement, I am still assuming there are no improvements or visible lines of possession as stated in the orginal post.
Ok, now you guys can blast me!:-)
I don't know how you guys can so flippantly dismiss the deed (or will in this case). It is absolutely the document that established and created the parcels. It is created by the owner, the scrivener simply puts into a legal document the intent of the owner. It is created by the owner, with her signature. The legal description is sufficient if it can be laid out on the ground.
> I cannot find a survey prior to her Will but each tract is described, not with bearing and distance but with general directions, corner descriptions, adjoiners names and which child gets which lot.
The corner descriptions, and adjoiners describe the parcels (according to the post). If there are ambiguities in the deed description, that is certainly up to interpretation. If the "first surveyor" does not adhere to the deed calls, (the corner descriptions and adjoiners) then I would have issue with the first surveyor's survey). If it was broken out by survey and the deed called to the original survey, I think the surveyor's corners would be a senior call.
If the subsequent owners change the parcel lines, or accept the first surveyor's corners, that is another story. That action will change the corner positions (Or at least the limits of the ownership).