Tom,
I was hoping someone would catch that, I stated it that way on purpose. Kinda opens another can of worms doesn't it?
"Deed staker" and "fence line staker" are pejoratives referring to many surveyors, but some carry the labels proudly (go figure). Usually these names are thrown around by those that don't understand what it is we are supposed to be doing out there - that is why we should all strive to become professional land surveyors.
A long time ago, 10 or 12 years ago, I posted the same Skelton stuff as Bow Tie on the old POB board. John really liked it, seen it as the way to handle some survey situations. Much discussion and such happened. The rest is history!
Tom,
Good post and excellent points.
Once discrepancies (ambiguities) are found, we need to investigate before we form an opinion. How can we properly investigate if we don't know what to look for, how to recognize it if we see it, how to properly interview people, and what the law says we need to be finding out?
How can a surveyor form a defensible opinion if he doesn't gather all the evidence and thoroughly understand the legal principles involved?
What happens after we form an opinion? There is no way to help the landowners resolve anything until we understand what the problem is. What tools do we need to use - a wrench, hammer, screw driver, or welder? Once the facts are known and the problem identified (if there even is a real problem vs a perceived problem), then we can intelligently advise the landowners (or title company, attorney's, etc) on the use of a QC deed, affidavits, express boundary agreement, or even an boundary adjustment. You can't repair a car unless you first know what the problem is and have the proper knowledge and tools to accomplish the task - what good is a jack and lug wrench when the real problem is a clogged air filter?
thebionicman, post: 337310, member: 8136 wrote: Taking off a little farther..
Not only is it true many Courts want for our opinions, more would have us prevent thier seeing any case at all. Who is (or should be) better equipped to assist owners in resolving conflicts between boundaries and records? This is where our education, mentoring and licensure fail miserably.
Not only do our schools and tests avoid complex statutes, they all but avoid case law altogether. The closest thing to a real exam (including this content) I've seen was Washington. I left the room wanting to vomit. That made me happy. Nobody obtaining that license was given anything.
I am not so naive as to think we can school and test ourselves to competence in the law. We certainly can do better. Now back to the subject...
The measurement sciences part of this job is not especially complex. If you have an intermediate understanding of algebra and geometry you can accomplish most tasks we are called on to perform. The added ability to recognize and evaluate fact patterns while drawing solutions out of the owners is what sets us apart. Most of my memorable surveys involved more research into records and case law than field time. Another common thread in those is the owners were not left to fend for themselves when I was done. The map was not sent down as an exhibit for a lawyers feast.
The most important saying I've learned as a Surveyor is, 'If there be peace in the neighborhood when I arrive let there be a better, lasting peace when I leave'. That can't happen if we pass our findings on to those who don't understand them.
"The added ability to recognize and evaluate fact patterns ..."
I really like that way of expressing it.
Thank you Jim. I've been enjoying this thread quite a bit..
LRDay, post: 337343, member: 571 wrote: A long time ago, 10 or 12 years ago, I posted the same Skelton stuff as Bow Tie on the old POB board. John really liked it, seen it as the way to handle some survey situations. Much discussion and such happened. The rest is history!
Hello LR, Johns presentation included a video produced by the Cape Cod Chamber of Commerce featuring the surveyor known here as Foggyidea...peoples republic of cape cod....he may also be of assistance....stepped through the process of becoming recognized as a mediator....
John is a personal friend. As far as surveyor mentors John is mine when it comes to boundary law. Lots of hours on the phone, on these boards and even at his house and other meetings. I'm the student and John is the professor. If I taught John anything it is from the questions I asked which John spent hours finding and providing the answers. I don't know anyone with more passion about boundary law than John. I've met Lucas but don't know him personally. I'm one lucky duck having John as a friend and mentor for sure!
I've considered becoming a mediator, but my age and the cost might not all even it out. There is one Utah mediator course that costs over $3000 and takes significant time to complete. I'm really not in the states legal loop either, just a boondocks rural land surveyor along with many other irons in the fire.
The mental roadblock most surveyors face in understanding how to deal with ambiguities or apparent conflict between actual occupation and what the deed appears to be telling us is that boundary surveying is not about making measurements and deciding whether to hold the distance of one deed over a conflicting one of an adjoining property or to proportion. Measurement and mathematical process are merely tools we use to spatially relate and report the locations of the various physical evidence to the lines and points resulting from our analysis of the evidence.
Our role as boundary surveyor is primarily that of investigator. We gather enough facts to support reasonable conclusions as to where existing boundaries were originally established, or to determine if they were ever actually physically established. When you come onto a situation like you describe, where the apparent boundary fence is 9' from the 1/16th line, the first thing I need to ask is how did you determine where that 1/16th line is? Was it determined according to monuments existing at the 1/16th corners or along the line in question, or was it determined by mathematical process from distant monuments (section corner and quarter corner monuments)?
Have you sought to find out who placed the fence, when it was originally placed, and for what purpose? If it was placed mutually by coterminous landowners many years ago to mark their common boundary and they took reasonable care (reasonable for non-surveyor landowners, not reasonable care for a licensed surveyor) to place it as close to the true location as possible, especially during a period in which the availability of an authorized surveyor was severely limited, or if it was placed by the common owner before the parcels were divided, then the fence is more than likely the still existing monument of the original physical establishment of the boundary and is the 1/16 line for the length of that fence (so far as it does not interfere with a senior right of another party).
If, on the other hand, the fence was placed primarily to enclose an area for livestock or other ownership use with nothing more than a mere hope that it be somewhere near the true line but without specific intent to mark the true line or to agree to its location to settle an uncertain line, then the fence is just a fence. It wouldn't represent the original establishment of the boundary, but it may have ripened into the occupational basis for asserting prescriptive rights 9adverse possession). If that's the case, then the surveyor should seek to establish as many facts as he can that would tend to answer the question of the existence or non-existence of a valid possessory title claim.
Seeking out these facts is a more important task than making careful measurements for the boundary surveyor because, to paraphrase Mulford, it is far more useful to correctly identify the boundary even if you make somewhat faulty measurements to it than it is to make very precise and careful measurements to a line that isn't and never was the boundary. In fact, identifying an incorrect boundary location due to not adequately ascertaining as many facts as can be reasonably uncovered is worse than useless because it encourages one to assert rights over land where no title right by either imprecise but valid establishment or through unwritten transfer by operation of law has created any title rights, and often leads to unnecessary litigation.
We investigate and find the physical, documentary, and historical facts that comprise a complete body of evidence pertaining to a boundary location, and then we interpret each fact in context of all the other facts as the courts (and often, statutes) direct us to in order to arrive at sound conclusions which are best supported by the evidence.
Surveyors will also often go at the analysis backwards as well, picking a doctrine and then walking through some checklist to see if the facts fit. I suggest first analyzing the facts by imagining yourself in the position of being one of the landowners when a piece of physical evidence was placed or a historical act occurred. Imagine yourself as a reasonable landowner dealing with an equally reasonable adjoiner who each just want to establish some certainty about their line, or perhaps just want to keep one's sheep apart from the other's cattle. Does the physical evidence now existing taken with whatever historical accounts and documentary evidence you've been able to obtain support the scenario of reasonable landowners who were perhaps unknowledgeable and poorly skilled in measurement having made a reasonable attempt to establish their common boundary, or does it better support a more haphazardly placed livestock enclosure or unilateral placement of a fence? Tease out the story the evidence is telling and then look to see which doctrine that story fits within.
In direct answer to your question, if you are truly dealing with evidence of a possible unwritten transfer, the surveyor has an obligation to report all of the facts he can reasonably obtain to speak to that question as well as all the facts that lead to the most supportable boundary location. With that, you can offer to facilitate a lot line adjustment (with an identifiable potential unwritten transfer, there can't be uncertainty as to the true boundary location, it must be reasonably ascertainable from the boundary evidence available), but also be able to provide a rough overview of other options for which your client would need to seek the assistance of an attorney or other professional. those options can include "You could try to negotiate to buy from the adjoiner" (which would be done as a LLA), "You could sue your neighbor to quiet title of the disputed portion and here is the evidence that supports that claim and the evidence that contradicts it", to "You could try to just ignore the situation and hope that your neighbor does as well to maintain the status quo." (obviously the least advisable, but an option available to the client whether we like it or not)
But we have an equal obligation to identify whether the line of occupation represents a valid original establishment, to explain the evidence that supports the location, and to explain why it deviates from the mathemagically "correct" location that some other surveyor (licensed measurer) is certain to identify as the "true" boundary.
Then you run into a case like I did where a standard four-sided parcel out of a quarter section doesn't even come close to matching the deed. I forget the exact dimensions but it was on the order of 10 acres total. The fence line on the south side of occupation was 48 feet too far south, but basically parallel with the north line. The fence line on the east side of occupation was 16 feet too far east, but basically parallel with the west line. The north 50 feet of the tract had been taken for road right-of-way. One of the early owners of the tract was a shyster and a half. He had three very convenient house fires from which he profited greatly at different locations than this one. My initial assumption was that he moved the fence to make up for what was unusable on the front. Besides, the owner of the adjacent farm land lived three States away and almost never came around to check on his land. I could not come up with a good explanation for the extra 16 feet on the one side.
The best theory that finally came out was an error by someone involved in putting the original description on a deed. The dimensions were rods and links. The north-south dimension was so many rods and 8 links. Add a zero on the 8 to get 80. The difference, 72 links, is almost 47.5 feet. The east-west dimension was so many rods and 3 links. Add a zero on the 3 and get 30. The difference, 27 links, is 18 feet, pretty close to the 16 foot problem. That's a convenient scenario that is halfway close to making sense. It's not totally convincing, but it's a nice theory.
I still believe the real error was caused by the crooked owner many years ago moving things to suit himself. That would pre-date either of the current owners involved.
Brian Allen, post: 337322, member: 1333 wrote: I used to believe this also. Is our job to locate the boundaries of the parcel we are surveying? I think we can all agree on this.
Taking Florida for example, and this will probably apply to all the states with boundary by agreement/acquiescence doctrines, as they all tend to be similar.
The case I cited above states: "The line so agreed on becomes in legal effect the true line, the agreement as to the line may be in parol, and it does not operate to convey title to the land which may lie between the agreed line and the true line, but it fixes the line itself and the description carries title up to the agreed line regardless of its accuracy; the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title; the parties hold up to the agreed line by virtue of their original deeds and not by virtue of the parol agreement; `the division line when thus established attaches itself to the deeds of the respective parties and simply defines, not adds to, the lands described in the deeds,' and, if more is thus given to one than the calls of his deed actually require, he `holds the excess by the same tenure that he holds the main body of his land."
A careful and thorough reading of this reveals a few important points:
1) The line so agreed on becomes in legal effect the true line.
Isn't that what we are supposed to be finding?2) but it fixes the line itself and the description carries title up to the agreed line regardless of its accuracy;
For those out there that believe there is a "title line" and another "property line" that has been established by some "unwritten transfer" - this is inarguably a direct "black robe" issued contradiction to your false and uniformed assertions. Plain and simple - The property carries TITLE up to the AGREED LINE. As Leon points out, this happens at the moment in time the requirements are met - not when a surveyor finds the discrepancy between what is established on the ground and what is written in the description. How can we go out 50 years AFTER the agreed line has been legally established and try and color a person title by trying to "move" the boundary from where it has been for 50 years, back to where it "should be"? Talk about taking on liability - you might want to read up on slander of title, malpractice, and negligence.3) the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title;
Pretty darn plain....4) the parties hold up to the agreed line by virtue of their original deeds and not by virtue of the parol agreement;
Once again, the agreed line is not a "new" line.5) the division line when thus established attaches itself to the deeds of the respective parties and simply defines, not adds to, the lands described in the deeds,' and, if more is thus given to one than the calls of his deed actually require, he `holds the excess by the same tenure that he holds the main body of his land.
So where is the "deed line/title line? I'm not sure how it can be stated any plainer.Would we rather follow the plain and simple concepts that the courts have been telling us for well over 100 years, or should we keep rolling the dice and hoping that some sharp attorney that specializes in negligence and malpractice doesn't get a hold of our work? I'm going to continue being a professional land surveyor - not a gambler.
For those "deed stakers" out there - an agreed line is the "title line" - it is the "deed line" - it is the line called for in the description - IT IS THE BOUNDARY LINE. What lines are you finding, and what is the legal and professional justification for doing so?
"Would we rather follow the plain and simple concepts that the courts have been telling us for well over 100 years". Yes Yes Yes The point I was making is that the Survey alone does not make it so. Yes it should reflect agreements and parole evidence. The location of the line should be based on the ponderance of evidence. Based on the particular circumstances, I have shown the area that differs from the deed calls as a tract within Subject Property and other times as a separate tract outside. As thebionic man said, we need to assist the Client in following through with the proper documentation. How many times have we heard that Granddaddy and Old Man Lawson agreed that the fence was the line in 1949 and no one is around now to attest to the agreement so ii is contested and then the survey was never recorded. If my statement appears to justify "deed stakers", I totally misstated my position. Each survey should be approached with fear and trembling to report all the facts. We should then encourage the Client to take appropriate action to document the facts. I have developed the habit over the years that before I sign a survey that I imagine myself on the witness stand and think can I justify my actions. What good are we if we can't?